Judge: John J. Kralik, Case: 22BBCV00336, Date: 2022-08-19 Tentative Ruling
Case Number: 22BBCV00336 Hearing Date: August 19, 2022 Dept: NCB
North
Central District
|
raymond
zargaryan, Plaintiff, v. karen
petrosyan, et al., Defendants. |
Case No.: 22BBCV00336 Hearing Date: August 19, 2022 [TENTATIVE] order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Richard Zargaryan (“Plaintiff”)
alleges that on January 6, 2020, Defendant Karen Petrosyan (“Petrosyan”) solicited
Plaintiff to, jointly and equally, purchase Cold Stone Creamery number 20242 in
Seal Beach (“SB Store”) and Cold Stone Creamery number 22066 in Costa Mesa (“CM
Store”). Plaintiff alleges that they
negotiated the purchase of the stores with Sharon Gottlieb (the owner of MP Ice
Cream, Inc. and SBG Enterprise, Inc., respectively the owners of the SB Store and
CM Store, and formed Defendant Cooler West Enterprise (“CWE”), on January 21,
2020 for the purpose of operating the Stores.
Plaintiff alleges that CWE reached
an agreement with Gottlieb and simultaneously entered into escrow for both
stores, putting an earnest money deposit of $25,000 each. On April 8,
2020, CWE executed a franchise agreement with Kahala Franchising, LLC (franchisor)
on the SB
Store and closed escrow upon the deposit of $620,000
from Plaintiff and $50,000 from Petrosyan.
Plaintiff alleges that he deposited $620,000 into escrow with an
agreement and understanding between Petrosyan and Plaintiff, that Plaintiff
would be reimbursed $285,000, which was loaned and promised to be paid back by
Petrosyan, in order to finalize the closing of the SB Store. Plaintiff alleges that Petrosyan failed to
reimburse him.
Plaintiff
alleges that the CM Store was delayed due to Petrosyan’s inability to marshal
capital to finance his portion of the investment and that Petrosyan canceled
escrow on the CM Store on May 6, 2020, resulting in the loss of the $25,000 earnest
money deposit.
Plaintiff
alleges that CWE took over possession of the SB Store and almost immediately Petrosyan,
with the cooperation of his spouse Defendant Naira Kalashyan (“Kalashyan”), conspired
to defraud Plaintiff by converting and misappropriating CWE’s funds for
personal benefit and excluding Plaintiff from the books, accounts and
suppliers, in order to cover their wrongdoing.
By October 2021 Petrosyan insisted that he bought CWE for upwards of $500,000
but was unwilling to provide access to CWE’s books for Plaintiff to conduct due
diligence and assess the corporate value. Plaintiff alleges that Petrosyan and Kalashyan
conspired to exclude Plaintiff and his family from overseeing the SB Store. He alleges that Petrosyan and Kalashyan embezzled
cash receipts and diverted supplies for personal gain. Plaintiff alleges that Petrosyan closed
escrow on the CM Store in June 2021 and began converting and embezzling CWE’s
bank funds for his personal benefit. Plaintiff alleges that Petrosyan has converted
over $42,300.68 from CWE bank accounts.
The complaint, filed May 13, 2022, alleges
causes of action for: (1) breach of express contract against Petrosyan; (2) breach
of implied contract against Petrosyan; (3) breach of fiduciary duty against
Petrosyan; (4) tortious interference with prospective economic advantage against
Petrosyan; (5) trade secret misappropriation against all Defendants; (6) intentional
interference with contract against Petrosyan; (7) negligent interference with
prospective economic advantage against Petrosyan; (8) fraudulent concealment
against all Defendants; (9) conversion against Petrosyan; (10) unjust
enrichment against all Defendants; (11) declaratory relief against all
Defendants; (12) common count against Petrosyan; (13) accounting against
Petrosyan; and (14) unfair business practice against all Defendants. The Court notes that the causes of action in
the caption of the complaint differs from the causes of action numbered in the
body of the complaint.
B.
Demurrer on Calendar
On June 21, 2022, Defendants Karen
Petrosyan and Naira Kalashyan (hereinafter, “Defendants”) filed a demurrer to
the complaint.
On August 8, 2022, Plaintiff filed an opposition
brief.
On August 25, 2022, Defendants filed a
reply brief.
REQUEST
FOR JUDICIAL NOTICE
Defendants request judicial notice
of: (A) a printout from the official website of California Contractors State License
Board showing Plaintiff as a licensed contractor with relevant address obtained
on June 15, 2022; (B) a copy of the recorded grant deed with the Los Angeles County
showing Plaintiff’s residence in California obtained on June 15, 2022; (C) a
printout of the relevant Secretary of State filing for Cooler West Enterprise
obtained on June 15, 2022; and (D) a copy of the Cancellation Instrument signed
by Plaintiff on May 6, 2020. The Court will
take judicial notice of Exhibits A-C, but declines to take judicial notice of
Exhibit D.
DISCUSSION
A.
1st cause of action for Breach of Express Contract
against Petrosyan and 2nd cause of action for implied contract
against Petrosyan
The essential elements of a cause of
action for breach of contract are: “(1) the existence of the contract, (2) plaintiff's
performance or excuse for nonperformance, (3) defendant's breach, and (4) the
resulting damages to plaintiff.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821.) CCP §430.10(g) states that there are grounds for a demurrer
when it cannot be determined from the pleadings whether the contract is
written, oral, or implied by conduct.
Defendants demur to the 1st
and 2nd causes of action, arguing that Plaintiff has not adequately
pled whether the contracts are written or oral and the terms of the
agreements.
Plaintiff’s 1st
cause of action is based on Plaintiff and Petrosyan’s agreement that Plaintiff
would invest $620,000 to purchase the SB Store and provide a loan in the amount
of Petrosyan to $285,000. (Compl., ¶¶19,
36.) However, the allegations do not
allege whether this contract was written or oral. Further, the terms of the agreement are not
stated, such as the terms of the loan, the date of repayment, etc. In opposition, Plaintiff argues that there is
a written agreement in the form of the franchise agreement that CWE entered
into with Kahala Franchising, LLC. (See id.,
¶18.) However, Plaintiff has not provided
a copy of the franchise agreement, nor has he alleged that the franchise
agreement included terms that Petrosyan would invest $620,000 and Plaintiff
would be making a loan to Petrosyan in the amount of $285,000.
Plaintiff’s 2nd
cause of action is based on Plaintiff entering an implied agreement with
Petrosyan that Plaintiff would advance Petrosyan’s 50% in initial contribution
into CWE in order to finalize the close of escrow. (Compl., ¶41.) He alleges that he performed by
providing $620,000 into escrow, including Petrosyan’s portion of $285,000. (Id., ¶42.) Again, the material terms of this implied or
oral contract are not provided.
Defendants also demur to the breach
of contract causes of action, arguing that they are time-barred. However, as the terms of the contracts themselves
are vague, the Court cannot ascertain when the contracts were breached. In order for the bar of the statute of limitations
to be raised by demurrer, the defect must clearly and affirmatively appear on
the face of the complaint; it is not enough that the complaint shows merely
that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Services (2007)
153 Cal.App.4th 1308, 1315-16.)
The demurrer to the 1st and 2nd
causes of action is sustained. As this
is the first attempt at the pleading, the Court will allow leave to amend.
B.
3rd cause of action for breach of fiduciary
duty against Petrosyan
To state a cause of action for
breach of fiduciary duty, Plaintiff must allege: (1) the existence of a
fiduciary relationship; (2) its breach; and (3) damage proximately caused by
that breach. (Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.)
Defendants demur to the 3rd
cause of action, arguing that Plaintiff has not alleged fact showing which type
of fiduciary duty is at issue: the duty of care or the duty of loyalty. The complaint alleges that Petrosyan breached
both duties, which is not improper. (See
Compl., ¶¶46-59.)
Next, Defendants argue that
Plaintiff alleges insufficient facts to show that punitive damages are warranted
in connection with this cause of action.
However, this is better raised in a motion to strike, as it does not
necessarily address whether the breach of fiduciary duty cause of action is sufficiently
pled. In contrast, punitive damages allegations
require a high level of specificity to be properly pled.
The demurrer to the 3rd
cause of action is overruled.
C.
4th cause of action for tortious
interference with prospective economic advantage against Petrosyan
The elements of
the tort of intentional interference
with prospective economic advantage are: “(1) an economic relationship between the plaintiff and some third party,
with the probability of future economic benefit to the plaintiff; (2) the defendant's
knowledge of the relationship; (3) intentional acts on the part of the
defendant designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately caused by the
acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) “In addition,
the plaintiff must allege that the defendant's conduct was wrongful by some
measure beyond the fact of the interference itself. [Citation.] In this
context, an act is independently wrongful if it is unlawful, that is, if it is
proscribed by some constitutional, statutory, regulatory, common law, or other
determinable legal standard. [Citation.] The conduct must be independently
actionable. The act of interference with prospective economic advantage is not
tortious in and of itself, but requires pleading that a defendant has engaged
in an act that was independently wrongful in order to distinguish lawful competitive
behavior from tortious interference.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real
Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1220
[internal quotation marks and citations omitted].)
In the
4th cause of action, Plaintiff alleges that CWE entered into a valid
and binding contract to purchase the CM Store business from MP Ice Cream, Inc. (Compl., ¶67.) Plaintiff alleges that Petrosyan was aware of
CWE’s economic relationship with MP Ice Cream, Inc. and other parties. (Id., ¶68.) Plaintiff alleges that Petrosyan disrupted
the escrow proceedings and engaged in intentional wrongful acts to disrupt
Plaintiff’s economic relationships. (Id.,
¶¶69-70.) Plaintiff alleges that as a
result of Petrosyan’s wrongful conduct, MP Ice Cream, Inc. terminated the escrow
of CM Store and the prospective relationships with CWE, causing economic harm
to Plaintiff. (Id., ¶71.)
Defendants argue
that Plaintiff lacks standing to bring this cause of action because it was CWE that
entered into the contract with MP Ice Cream, Inc. and thus any rights to the
prospective economic relationships would have belonged to CWE and not Plaintiff. The Court finds merit with this
argument. In opposition, Plaintiff
argues that he has brought this case derivatively on behalf of CWE. However, no such allegations of a derivative
lawsuit have been made in the complaint.
Next, Plaintiff
alleges in a conclusory fashion that Petsroyan engaged in “intentional wrongful
acts” (see Compl., ¶70), but Plaintiff has not alleged what independently
wrongful conduct Petrosyan engaged in that would meet the elements of this
cause of action. At best, this
allegation is conclusory and should be supported by facts upon amendment.
The demurrer to the 4th cause
of action is sustained with leave to amend.
D. 5th
cause of action for trade secret misappropriation against Defendants
A cause of action
for monetary relief under the California Uniform Trade Secrets Act (“CUTSA”)
consists of the following elements: “(1) possession by the plaintiff of a trade secret;
(2) the defendant's misappropriation of the trade secret, meaning its wrongful
acquisition, disclosure, or use; and (3) resulting or threatened injury to the
plaintiff.” (Silvaco Data
Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 220 disapproved on other grounds by Kwikset
Corp. v. Superior Court (2011) 51 Cal.4th 310.)
In the 5th
cause of action, Plaintiff alleges that CWE maintains proprietary trade secrets,
which it has made efforts to protect. (Compl., ¶¶74-75.) Plaintiff alleges that Petrosyan and
Kalashyan engaged in wrongful conduct such that CWE will be economically harmed. (Id., ¶77.)
Similar to the
discussion above, Plaintiff lacks standing to sue on this cause of action as he
acknowledges in the complaint that CWE is the holder of the trade secret.
In addition, the complaint is
devoid of any facts regarding the nature of the trade secret. A “trade secret” means “means information,
including a formula, pattern, compilation, program, device, method, technique,
or process, that: [¶] (1) Derives independent economic value, actual or
potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use; and [¶] (2) Is the subject
of efforts that are reasonable under the circumstances to maintain its
secrecy.” (Civ. Code, § 3426.1(d).) The
complaint is devoid of any facts alleging the nature of the purported trade
secret—i.e., a customer list, a secret ice cream formula, etc.
The demurrer to the 5th cause
of action is sustained with leave to amend.
E. 6th
cause of action for intentional interference with contract against
Petrosyan
“The elements
which a plaintiff must plead to state the cause of action for intentional interference
with contractual relations are (1) a valid contract between plaintiff and a
third party; (2) defendant's knowledge of this contract; (3) defendant's
intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship;
and (5) resulting damage.” (Pac Gas & Electric Co. v. Bear Stearns
& Co. (1990) 50 Cal.3d 1118, 1126.)
“Where there is no existing, enforceable contract, only a claim
for interference with prospective advantage may be pleaded.” (PMC,
Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601, disapproved on other grounds by Korea Supply
Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134.)
In the 6th cause of action,
Plaintiff alleges that CWE entered into valid and
binding agreements and escrow for the purchase of the SB Store and CM
Store. (Compl., ¶79.) Plaintiff alleges that Petrosyan was aware of
the agreements and directed the performance of the escrow on SB Store to be
canceled for personal financial benefit, thereby engaging in wrongful conduct
to intentionally disrupt the escrow. (Id., ¶¶80-81.) Plaintiff alleges that as a result of Petrosyan’s
interference, he has suffered harm. (Id.,
¶83.)
Defendants demur to this cause of action,
arguing that Plaintiff has not alleged the existence of a valid contract. As discussed above, the complaint lacks facts
regarding a valid agreement. While
Plaintiff alleges that CWE had a contract, CWE is not the plaintiff of this
action. Without this foundational element
of the existence of a contract between Plaintiff and a third party, the
remainder of the elements have not been met.
The demurrer to the 6th cause
of action is sustained with leave to amend.
F.
7th cause of action for negligent
interference with prospective economic advantage against Petrosyan
“The tort
of negligent interference with prospective economic advantage is
established where a plaintiff demonstrates that (1) an economic relationship
existed between the plaintiff and a third party which contained a reasonably
probable future economic benefit or advantage to plaintiff;
(2) the defendant knew of the existence of the relationship and was aware or
should have been aware that if it did not act with due care its actions would interfere with
this relationship and cause plaintiff to lose in whole or in part the probable
future economic benefit or advantage of the relationship;
(3) the defendant was negligent; and (4) such negligence caused
damage to plaintiff in that the relationship was actually interfered with or
disrupted and plaintiff lost in whole or in part
the economic benefits or advantage reasonably expected from
the relationship.” (Venhaus
v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)
In the 7th
cause of action, Plaintiff alleges that he and MP Ice Cream Enterprises, Inc. had
an economic relationship that would have resulted in future economic benefit to
Plaintiff. (Compl., ¶87.) Plaintiff alleges that Petrosyan knew or should have known of this relationship and should
have known that this relationship would be disrupted if he failed to act with
reasonable care. (Id., ¶88.) Plaintiff alleges that, Petrosyan failed to
act with reasonable care by engaging in wrongful conduct by among other things,
demanding last minute conditions, in order to interfere with the Plaintiff's
expectation of profit. (Id.,
¶89.) He alleges that Petrosyan’s
conduct was a substantial factor in disrupting Plaintiff's economic relationship
with MP Ice Cream Enterprises, Inc. and as a result, Plaintiff has suffered
damages. (Id., ¶90.)
Defendants argue
that Plaintiff has not alleged supporting facts showing what economic
relationship he had with MP Ice Cream Enterprises, Inc. Based on the Court’s review of the complaint,
Plaintiff essentially alleges a legal conclusion that an economic relationship existed,
without any supporting facts. Further
facts should be alleged upon amendment.
The demurrer to
the 7th cause of action is sustained with leave to amend.
G.
8th cause of action for fraudulent
concealment against all Defendants
The elements for fraudulent concealment
are the following: (1) the defendant must have concealed or suppressed a
material fact; (2) the defendant must have been under a duty to disclose the fact
to the plaintiff; (3) the defendant must have intentionally concealed or suppressed
the fact with the intent to defraud the plaintiff; (4) the plaintiff must have
been unaware of the fact and would not have acted as he did if he had known of
the concealed or suppressed fact; and (5) as a result of the concealment or
suppression of the fact, the plaintiff must have sustained damage. (Lovejoy
v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 157-158.) This cause of action is a tort of deceit and the facts
constituting each element must be alleged with particularity; the claim cannot
be saved by referring to the policy favoring liberal construction of
pleadings. (Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.) Since the claim must be pleaded with particularity, the cause of action
based on misrepresentations must allege facts showing how, when, where, to
whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.)
In the 8th cause of
action, Plaintiff alleges that he and Petrosyan are officers,
directors, shareholders and partners of CWE and that Petrosyan owed certain
duties to CWE and its shareholders. (Compl.,
¶92.) Plaintiff alleges that Petrosyan knowingly
failed to disclose and/or prevented Plaintiff from discovering further negotiations
with MP Ice Cream, Inc. for the CM Store in order to usurp a business opportunity
originally presented to and otherwise rightfully belonging to CWE. (Id., ¶93.) He alleges that Petrosyan intended to deceive
him by concealing the opportunity for personal gain from a newly formed shell
corporation called Cooler G. Inc. and that Petrosyan prevented Plaintiff from
discovering facts pertaining to the status of CWE by concealing the books and
records, manipulating supplier information to block access, and demanding
employees to not cooperate with Plaintiff.
(Compl., ¶95.) He alleges that Petrosyan
concealed his conversion and embezzlement of CWE funds by opening and shifting
funds through multiple bank accounts and disguising transactions as CWE transactions. (Id., ¶96.)
Plaintiff alleges that he was unaware that Petrosyan and MP Ice
Cream, Inc. had reentered negotiations and escrow for the sale of the CM Store,
originally contracted and in escrow with CWE, and did not consent to Petrosyan
individually acquiring it. (Id.,
¶97.) Plaintiff alleges he was unaware of
the aforementioned conduct. (Id.,
¶98.) He alleges that had the omitted
information been disclosed, he would have been ready, willing, and able to
secure the opportunity to purchase the CM Store. (Id., ¶99.)
Plaintiff alleges Petrosyan’s concealment was a substantial
factor in causing his harm. (Id.,
¶100.)
Defendants Petrosyan and Kalashyan demur to the 8th cause
of action, arguing that Plaintiff does not allege any facts against CWE, such
that the demurrer should be sustained as to CWE. The Court notes that Petrosyan and Kalashyan’s
counsel does not represent CWE. In fact,
it does not appear that CWE is represented by counsel and CWE has not filed a
demurrer to the complaint. Petrosyan and
Kalashyan have also not stated their standing to raise arguments on behalf of
CWE.
To the extent Petrosyan and Kalashyan demur to the 8th
cause of action on the basis that punitive damages was not adequately pled, this
again is better raise in a motion to strike and will not be a basis for
demurrer.
Finally, Defendants Petrosyan
and Kalashyan argue that Plaintiff has not alleged this cause of action with
the requisite specificity for a fraud cause of action. The Court has reviewed the 8th
cause of action and finds merit to this argument. The fraud cause of action should be pled with
the requisite specificity upon amendment.
The demurrer to the 8th cause
of action is sustained with leave to amend.
H. 9th
cause of action for conversion against Petrosyan
The
elements of a conversion claim are the following: (1) the plaintiff’s ownership
or right to possession of the property; (2) the defendant’s conversion by a
wrongful act or disposition of property rights, interfering with plaintiff’s
possession; and (3) damages. (Lee v.
Hanley (2015) 61 Cal.4th 1225, 1240; PCO,
Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th
384, 395.) In this cause of action, it is necessary
to show an assumption of control or ownership over the property, or that the
alleged converter has applied the property to his own use. (Shopoff
& Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507.)
Defendants argue that Plaintiff fails to
allege facts showing what property rights he had that constitutes the basis for
his conversion claim. The 9th
cause of action alleges that Petrosyan interfered with Plaintiff’s property by knowingly
and/or intentionally taking possession of CWE’s bank funds and utilizing it for
personal benefit through Cooler G, Inc.
(Compl., ¶105.) He alleges that Petrosyan
interfered with his ownership interest in CWE knowingly and/or intentionally preventing
him from accessing administrative systems, service provider accounts and corporate/employment
records. (Id., ¶106.) In opposition, Plaintiff quotes paragraphs
105 and 106.
Here, the allegations of the 9th
cause of action are somewhat lacking in identifying what Plaintiff’s ownership or
right to possession in property were that constitute the basis for his conversion
claim. For example, if it is converted
funds that he initially invested or something else that is identifiable, he
should make these allegations to apprise Defendants and this Court of the basis
of his claim.
The
demurrer to the 9th cause of action is sustained with leave to
amend.
I.
10th cause of action for unjust enrichment against
all Defendants
J.
11th cause of action for declaratory relief
against all Defendants
“Any person interested under a written
instrument … or under a contract, or … in, over or upon property… may in cases
of actual controversy relating to the legal rights and duties of the respective
parties, bring an original action or cross-complaint … for a declaration of his
or her rights and duties in the premises, including a determination of any
question of construction or validity arising under the instrument or
contract.” (CCP §1060.) Declaratory relief is allowed if the seeking
party presents two essential elements: “(1) a proper subject of declaratory
relief, and (2) an actual controversy involving justiciable questions relating
to [the party's] rights or obligations.”
(Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 909.)
In the 11th cause of action,
Plaintiff alleges: “An actual controversy has arisen and now
exists between the Plaintiff and Defendants concerning their respective rights
and duties in the two corporations herein mentioned: Cooler West and Cooler G;
and therefore the Plaintiff requests that these rights and duties be adjudged
by the court.” (Compl., ¶117.)
To the extent that Defendants argue that
CWE was mis-joined as a defendant to this cause of action, the demurrer is
overruled as they are not representing CWE in this action.
Next, to the extent that Defendants argue
that this cause of action does not make sense because Plaintiff has already alleged
that he is the 50% shareholder of CWE, this is an argument that addresses the actual
merits of the declaratory relief claim.
A demurrer is a procedurally inappropriate method for disposing of a
complaint for declaratory relief. (Lockheed
Martin Corp. v. Continental Ins. Co. (2005) 134 Cal. App. 4th 187, 221.)
This is based on the reasoning that an order sustaining the demurrer would
leave the parties where they were, with no binding determination of their
rights, to await an actual breach and ensuing litigation. (Id.) This would defeat a
fundamental purpose of declaratory relief, which is to remove uncertainties as
to legal rights and duties before breach and without the risks and delays that
it involves. (Id.) The object
of declaratory relief is not necessarily a beneficial judgment; instead, it is
a determination, favorable or unfavorable, that enables the plaintiff to act
with safety. (Id.) This
reasoning has established the rule that the defendant cannot, on demurrer,
attack the merits of the plaintiff's claim (italics added for emphasis). (Id.)
Accordingly, a complaint is sufficient if it shows an actual
controversy; it need not show that plaintiff is in the right. (Id.)
Finally, Defendants argue that Plaintiff
has not alleged what contract or written instrument Plaintiff is basing his
claim for declaratory relief. Plaintiff
has not made such allegations and has not addressed this issue in the opposition. Thus, the demurrer to the 11th
cause of action is sustained with leave to amend.
K.
12th cause of action for common count against
Petrosyan
Defendants demur to the 12th
cause of action, arguing it is time-barred.
However, as discussed above, as
the terms of the contracts themselves are vague, the Court cannot ascertain
when the contracts were breached. In order for the
bar of the statute of limitations to be raised by demurrer, the defect must
clearly and affirmatively appear on the face of the complaint; it is not enough
that the complaint shows merely that the action may be barred.” (E-Fab,
Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.)
The demurrer to the 12th cause
of action is overruled.
L.
13th cause of action for accounting against
Petrosyan
“A cause of action for an accounting
requires a showing that a relationship exists between the plaintiff and
defendant that requires an accounting, and that some balance is due the
plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 179.)
Defendants argue that this cause of action
fails because Plaintiff is an officer, director, and shareholder of CWE and has
in his own custody and control the relevant documents. However, whether
Plaintiff has the documents is an extrinsic argument that is not alleged in the
complaint. Rather, Plaintiff alleges that
he has been denied access to the corporate and employment records of CWE.
As such, the demurrer to the 13th
cause of action is overruled.
M.
14th cause of action for unfair business
practice against all Defendants
In light of the analysis above, the Court will
sustain the demurrer to the 14th cause of action.
In his opposition, Plaintiff argues that he
has sufficiently alleged fraud for his UCL claim. However, as discussed above, the demurrer to
the 8th cause of action has been sustained with leave to amend.
The demurrer to the 14th cause
of action is sustained with leave to amend.
CONCLUSION AND
ORDER
Defendants Karen Petrosyan and Naira Kalashyan’s
demurrer to the complaint is sustained with 20 days leave to amend as to the 1st,
2nd, 4th – 9th, 11th, and 14th
causes of action. The demurrer is
overruled as to the 3rd, 12th, 13th causes of action.
The demurrer to the 10th cause of action is sustained without leave
to amend.
Upon amendment,
Plaintiff should ensure that the caption of the amended complaint matches the causes
of action numbered in the body of the pleading.
Defendants shall provide notice of
this order.